NEVILLE JOHN JAMES and REPATRIATION COMMISSION
[2009] AATA 547
•14 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 547
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0450
VETERANS’ APPEALS DIVISION )
Re NEVILLE JOHN JAMES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date14 July 2009
PlaceBrisbane
Decision For reasons given orally after the hearing, the Tribunal affirms the decision under review.
....................[sgd]...................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – special rate of pension – remunerative work – whether prevented from continuing remunerative work – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), ss 19, 23, 24
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjarv Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Hendy v Repatriation Commission [2002] FCA 602
Repatriation Commission v Hendy [2002] FCAFC 424
Leane v Repatriation Commission [2004] FCAFC 83REASONS FOR DECISION
14 July 2009 M J Carstairs, Senior Member 1. Neville John James has applied for an increase in the rate of his disability pension. The respondent has assessed Mr James as eligible for payment at 100% general rate of pension since 1995 and he now seeks the higher, loss-of-earnings related payment, referred to in the Veterans’ Entitlements Act 1986 (“the Act’) as the “special rate”.
2. The respondent has accepted Mr James’ conditions of spondylosis with disc degeneration, bilateral hearing loss, chronic airflow limitation, depressive disorder, GORD and alcohol dependence as being conditions arising from his war service.
3. Entitlement to the special rate of pension requires, amongst other things, that a person is prevented from continuing to undertake remunerative work, and that they cannot work more than eight hours per week, by reason of war-caused disability or disabilities. The respondent says that Mr James is not entitled to special rate of pension because he ceased work for reasons other than war-caused incapacity, and he had been out of the workforce for 20 years. In addition, the respondent considers that Mr James’ age, and the length of time he has been absent from the workforce would also play a role.
ISSUES
4. The requirements for special rate of pension are set out in a series of provisions in s 24 of the Act. The parties agreed that Mr James passes some of the tests for entitlement. His general rate entitlement is more than 70%, thus satisfying s24(1)(a) of the Act. The parties agree that he satisfies s 24(1)(b) of the Act because he is unable to work more than eight hours per week by reason of his war-caused disabilities alone. I was satisfied that the concession in regard to s 24(1)(b) was properly made in view of the medical evidence in the case. The evidence to that effect comes from Dr D Ure, general practitioner, who reported that Mr James’ back pain and shortness of breath meant that he was unable to work. Dr V Venugopalan, psychiatrist, considered that Mr James’ conditions of alcohol abuse and depression contributed to his inability to work. He readily concluded that Mr James was unfit to work more than eight hours per week by reason of his mental condition on it s own[1].
[1] Page 83.
5. Where the parties disagree is whether Mr James satisfies s 24(1)(c) of the Act – which deals with the question of whether Mr James’ failure to now be in remunerative work is attributable to service-related incapacities and not to something else as well.
6. I would note here that the operation of s 24(1)(c) is ameliorated for those aged under 65 years by the provisions of s 24(2)(b) of the Act. Section 24(2)(b) permits those veterans, who might not have met the special rate tests at the time they ceased working, to retain their eligibility if they are genuinely seeking work, and their service-related incapacity remains the substantial cause of the inability to undertake remunerative work.
BACKGROUND
7. The legislation relating to special rate has to be understood in the context of it being an entitlement, that in accordance with s 19 of the Act, must be considered during the assessment period; a period which commences from the date of the claim and ends at the time that the matter is determined by the Tribunal: s 19(5C)(a). The importance of this becomes apparent when considering the background of facts in this case.
8. I shall now set out the facts as I see them. At the time of the claim (the start of the assessment period) Mr James was just over 64 years of age. In his working life he has undertaken a mixture of employment. However he did not have a good foundation for a wider range of employment, having completed his schooling only to first year high school, leaving at around the age of 15[2].
[2] Page 99.
9. Mr James’ Army medical records revealed that prior to his enlistment in the Australian Army (at around the age of 18), Mr James had worked as a shop assistant; a labourer at the Newcastle steel works; a brick labourer; and a rouse-about/shearer. All, I note, were for relatively short periods of time[3]. Having joined up, he then served for some 17 years in the Army as an infantryman, and in what he described as “stores positions”. He was discharged in 1977.
[3] Page 99.
10. After taking his discharge, Mr James undertook a limited amount of unskilled or semi-skilled work, again, for relatively brief periods. He managed a rural property for about a year; and worked as a vegetable picker.
11. Mr James’s last sustained period of remunerative work was at the Toowoomba foundry; this effectively coming to an end in 1980. He ceased working there as a result of the problems he was experiencing with his accepted back condition, and due to his excessive alcohol consumption.
12. In that regard, it seems to be the case that Mr James, at that time, would not have attributed any of his employment problems to alcohol. Likewise, he did not recognise alcohol as responsible for his early discharge from the Army. His appreciation of those problems is more recent, and has come about in the course of his treatment for his alcohol disorder, under the care of Dr Venugopalan. The medical evidence to my view is compelling, however in revealing that his limited recent employment indeed is attributable to his excessive alcohol consumption. This is demonstrated by the report of Dr Venugopalan, and in the medical reports dating from the mid -1990’s. Dr Ure’s reports in particular gives some significant insights in that regard.
13. For the most part since his discharge, now some 30 years ago, Mr James has been on social security pensions of one kind or another. From about 1980, after the death of his wife, he received Centrelink payments as a sole parent. Later, when his daughter left home, he transferred to a disability support pension. He sought, but was denied, service pension on the grounds of invalidity in 1991 (at age 50).
14. Mr James’ evidence about his efforts to find other work, after giving up the Toowoomba foundry job, was that he enquired at a local CES office, but was told there was no work available. He was also told by the Toowoomba City Council when he approached them in 1981-1982, that there was “no work – try at sewerage”. Taken at face value, those remarks do not suggest any perceived limitation about Mr James personally, rather a limitation on the then availability of the kind of work he was seeking.
15. However, Mr James said in his oral evidence that he was probably not presenting well at that time in his life, as his lifestyle was “low”. Mr James said that he had formed the impression after one interview with the Electricity Board, that the interviewer may have rejected him for the available position because he attended the interview smelling of alcohol. In 1991, Dr Ure’s report amply demonstrated that Mr James was presenting as an untreated alcoholic (who, as a result was permanently incapacitated for work). Given the circumstances of his discharge from the Army this was probably the case for some time. That was the thrust of Dr Venugopalan’s evidence, although he has only treated Mr James since 2005. Dr Venugopalan said that the longitudinal history suggested that the cause of Mr James problems was his alcohol disorder.
16. Those are the essential if somewhat brief outline of the facts upon which this claim must be determined. The respondent, as stated, does not contest any part of this claim, other than the matters that arise under s 24(1)(c) of the Act.
17. Decision-makers have come to examine the tests in s 24(1)(c) of the Act by applying a four-step analysis, commonly referred to as the Flentjar questions, as set out in the Full Federal Court decision, Flentjarv Repatriation Commission[4].
[4] (1997) 48 ALD 1.
18. The Federal Court, per Branson J, with whom Beaumont and Merkel JJ agreed, described s 24(1)(c) as posing the following questions:
1. What was the relevant "remunerative work that the veteran was undertaking"…?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
19. I will now consider Mr James’ matter by examining his facts in the light of those four questions.
WHAT REMUNERATIVE WORK WAS MR JAMES UNDERTAKING?
20. The best description of Mr James’ kind of remunerative work, given the occupations that he has undertaken, is a range of light to moderate/heavy unskilled or semi-skilled work, in industrial and rural settings. That is, apart from extended period of employment in the Army.
DID WAR-CAUSED DISABILITY PREVENT MR JAMES CONTINUING TO UNDERTAKE REMUNERATIVE WORK?
21. The medical evidence strongly supports a conclusion, from the start of the assessment period, that war-caused disability prevented Mr James continuing to undertake remunerative work. Dr Venugopalan’s evidence satisfies me of that, and indeed, that conclusion appears to be one conceded by the respondent.
22. So, from the start of, and throughout, the assessment period, this question as posed in Flentjar can be answered “yes”.
IS WAR-CAUSED DISABILITY THE ONLY FACTOR PREVENTING MR JAMES UNDERTAKING REMUNERATIVE WORK?
23. Mr James has not worked since the early 1980’s. For more than 20 years before making his claim for special rate of pension, Mr James has undertaken no remunerative work.
24. This, to my way of thinking, must be viewed in the context of Mr James’ personal history. There were several medical reports on file dealing with Mr James’ psychiatric history and referring to that personal history. These revealed that Mr James had a troubled childhood, more particularly after his mother died when he was about eleven years of age. During his teenage years Mr James in a boys’ home. This, it seems to me, created the setting in which Mr James’ future working life would be framed, especially as a result of his limited secondary schooling, which I have already mentioned.
25. Some attention needs to be given to the conclusions reached by treating medical practitioners with reference to that background. Dr Venugopalan observed that Mr James had few occupations for any sustained periods, other than his Army service. Dr Ure, in a report dated 1991, had referred to Mr James’ low education level and poor motivation as factors that would limit any retraining. Dr Ure’s report, it should be recalled, was compiled at a time when Mr James was more than 10 years out of the workforce, but only 50 years of age. Dr Ure further stated in that report: “not fit for employment. Back a partial contributor only. Personality disorder, personal habits and poor education standards also contribute to unemployability”[5]. Dr Ure noted that Mr James was making no attempts to improve his situation.
[5] Page 22.
26. Though these views were expressed by Dr Ure in 1991, I consider that they remained true when Mr James claimed for special rate of pension in 2005, but with much greater force, given his increased age at that time.
27. As the Federal Court pointed out in Cavell v Repatriation Commission (1988) 9 AAR 534, a commonsense approach must taken when looking at the issues in s24 of the Act, and this is called for in Mr James’ case.
28. Given the facts in this case, it is also important to appreciate that s 24 (1)(c) contains a number of concepts that are expanded upon in s 24 (2)(a) and (b) of the Act. As pointed out in Forbes v Repatriation Commission (2000) 101 FCR 50, section 24(1)(c) is best understood by dividing it into its two limbs, and relating those limbs to the section that follows – that is 24(2)(a) and s24(2)(b) of the Act. Section 24(2)(a) with reference to the second limb; and s 24(2)(b) with reference to the first.
29. Sub-section 24(2)(b) deems the first limb to have been met in respect of certain veterans (aged under 65 years). But the benefit of this provision, often referred to as an ameliorating provision, can only be taken where a veteran has been genuinely seeking to obtain remunerative work in the assessment period, and has been unable to do so, or to continue to do so, substantially because of incapacity from war-caused injury or disease.
30. Mr A Harding of counsel, who appeared for the applicant, relied upon the first limb of s 24(1)(c), and made additional submissions with respect to the ameliorating provision after the hearing. To the extent that those written submissions relied upon the judgment at first instance in Hendy v Repatriation Commission [2002] FCA 602, the submissions are plainly wrong. That decision was overturned by the Full Federal Court, and it is worth quoting the relevant test as outlined by the Full Federal Court[6]:
The Tribunal's task was to assess what the Veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider "remunerative work that the veteran was undertaking" does not mean a particular job with a particular employer but the substantive remunerative work that the Veteran had undertaken in the past. …... The Tribunal was not bound to limit its consideration to the last employment that the Veteran actually undertook.
37 The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the Tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to a veteran's incapacity, the Tribunal is then required to determine whether it is the veteran's war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.
[6] Repatriation Commission v Hendy [2002] FCAFC 424.
31. Turning then to the issue of whether Mr James can take the benefit of the ameliorative provision, the subsection provides that where a person who has not been engaged in remunerative work (and Mr James clearly has not) and is genuinely seeking such work, but the real cause of their failing to succeed in obtaining work can be shown to be war-caused disease, they may satisfy part of the test in s24(1)(c). I do not accept that the facts here allow a conclusion that Mr James was genuinely seeking to engage in remunerative work in the assessment period.
32. Mr James may have looked for work for a short period after leaving the foundry, and I have no reason to doubt his evidence that he would have liked to have worked to a normal retirement age. But the efforts he made could only be described as minimal. He appears to have accepted that once he was on a disability support pension from the then Department of Social Security (which is the period from 1984), he did not need to look for work. He also seems to have accepted that there was no work available at the Council, and other employers in Toowoomba, in the early 1980’s. But that hardly explains the absence of effort on his part thereafter. It needs to be borne in mind that he was not quite 40 years of age when he stopped working at the foundry.
33. The Full Court of the Federal Court emphasised in Leane v Repatriation Commission [2004] FCAFC 83, that a person is not seeking remunerative work if they merely have a wish or desire; they have to make a genuine attempt. That attempt or those attempts are, relevantly, ones undertaken during the assessment period. The steps must be genuine, and they must be undertaken. The facts here are that Mr James had long since given up any attempts to undertake remunerative work – his last efforts were over 20 years before the start of the assessment period. I was satisfied that Mr James had made no attempt to re-engage in remunerative work and so cannot satisfy s 24(2)(b).
34. But even if I were wrong in that conclusion, I would reach the conclusion that Mr James fails on the test set out in the second limb of s 24(1)(c), read with s24(2)(a) of the Act.
35. In considering this question, and taking that commonsense approach to the evidence recommended by the Federal Court in Cavell, the following matters are relevant:
§ in 1982, a departmental medical officer observed that labouring work was all that Mr James was trained to do;[7]
§ Mr James’ written statement in 1991, that what prevented him working: “apart from the medical reasons due to which I cannot even do light work, my age would be a definite barrier to employment”;[8]
§ the report of Dr Ure in 1981 stating that Mr James was not fit for employment due to his back condition, but also that his “personal habits and poor education standards also contribute to unemployment”[9]. Dr Ure thought that back pain contributed perhaps 10% to his unemployment, but he went on to observe that “poor education and poor motivation make rehabilitation inappropriate;[10]
§ Dr Venugopalan said that at the age of 64, age-related factors were significant in Mr James’ inability to work[11]. He reiterated this opinion in his oral evidence making the observation that not many 64-year olds would be still working in the kind of work that Mr James had undertaken in his life, either full or part-time.
[7] Page 12.
[8] Page 14.
[9] Page 22.
[10] Page 23.
[11] Page 83.
36. It is important to have regard to the difficulties that Mr James faced in his life with respect to employment. Being brought up in a boys’ home, and seemingly having troubled teenage years, his educational opportunities were cut short. Not attending school past the first year of high school would always place him at a disadvantage in retraining, if he needed to; a point acknowledged by Dr Ure.
37. Another factor, in addition to his age that would impact upon Mr James continuing in remunerative work, has to include his lengthy absence from the workforce. At the commencement of the assessment period, Mr James had been out the workforce for more than 20 years. His inability to demonstrate any recent workforce experience would make him unattractive to any employer, if presenting to seek employment at the age of more than 64 years (at the start of the assessment period).
38. In these circumstances, commonsense dictates that the possibilities for his employment were limited. So when we ask the questions that must be asked in s24(2)(a) – that is, are there any other reasons that account for Mr James no longer being in remunerative work, that is, reasons in addition to the acknowledged war-caused incapacity, the only common sense answer that can be given is that given by Dr Venugopalan. That is, that at the age of 64, there were other factors, including age, and time out of the workforce, that would prevent Mr James being in employment, even if he did not have his war-caused disabilities. He was always at a disadvantage in employment due to his limited educational achievements. These were limitations that led Dr Ure to confirm long ago that rehabilitation or retraining were not options for Mr James.
39. I accept Dr Venugopalan’s conclusions about the impact of age in this case. Those conclusions accord with a practical appreciation of the facts of the case. I am satisfied that Mr James does not (under the second limb of s 24(1)(c)) suffer the loss of wages that he would not be suffering if he were free of war-caused incapacity. In my view, in those hypothetical circumstances, he would still be suffering that loss. It matters not that, had he applied at some earlier time, he then might have satisfied the requirements for the special rate of pension.
40. I would also note that for the same reasons, Mr James cannot satisfy the requirements for intermediate rate of pension, as set out in s 23 of the Act, where the critical tests are identical.
DECISION
41. Accordingly, for the reasons given orally the Tribunal affirms the decision under review.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the order herein of M J Carstairs, Senior Member.
Signed ………………[sgd]………….…………………
Emily Clarke, AssociateDate of Hearing 10 July 2009
Date of Additional Submissions 13 July 2009
Date of Oral Decision 14 July 2009
Date of Written Reasons 22 July 2009
Counsel for the Applicant Mr A Harding
Solicitors for the Applicant Woods Prince Lawyers
Advocate for the Respondent Mr B Williams
0
6
0